Labor Relations Update

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Heylee Bernstein
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Latest from Labor Relations Update

As employers faced with a representation petition filed during the COVID-19 pandemic can attest, Regional Directors of the National Labor Relations Board have been incredibly reticent to hold in-person elections.  Indeed, since April 1st, when the Board resumed processing representation petitions, approximately ninety percent (90%) of elections have been held by mail rather than in-person.  This necessary paradigm shift flew in the face of the Board’s long-standing general policy to hold manual-ballot, in-person elections.  However, on November 9, 2020, the Board finally provided Regional Directors and key stakeholders, such as employers, employees and unions with important guidance concerning when, and…
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On September 15, 2020, the National Labor Relations Board (the “NLRB” or “Board”) Division of Advice (“Advice”), published four Advice Memoranda addressing an array of issues ranging from COVID-19-related unilateral actions to non-work political advocacy and the legality of confidentiality provisions in separation agreements.  The Memoranda were drafted by Advice last month, and join the panoply of other recent guidance released by Advice on July 15 and August 13. Advice Memoranda are only binding on the parties subject to the instant dispute, but they are publicly released to give the public an idea of how the agency might handle…
The National Labor Relations Board recently cancelled a union election at a Las Vegas casino that suspended its operations and laid off employees amid the COVID-19 pandemic. In NP Texas LLC d/b/a Texas Station Gambling Hall and Hotel and Local Joint Executive Board of Las Vegas, 370 NLRB No. 11 (2020), the Board found that the Regional Director erred in scheduling the election given that the laid-off employees had no “reasonable expectation of recall” and thus were ineligible to vote. Texas Station Casino and the COVID-19 Pandemic On March 18, 2020, the Governor of Nevada issued an emergency declaration…
The pandemic has thrown a number of obstacles at employers and employees as everyone attempts to navigate a novel situation.  On August 13, 2020, the National Labor Relations Board (“NLRB”) Division of Advice (“Advice”), the agency’s internal think-tank, published five Advice Memoranda dismissing unfair labor practice charges against employers in connection with issues concerning the COVID-19 pandemic.  The Memoranda were all drafted by Advice within the past two months, expanding upon the guidance previously released on July 15. Each Memoranda addresses a different COVID-related complaint concerning a variety of topics, such as employers’ responses to employees voicing concerns about workplace…
NLRB
On July 15, 2020, the National Labor Relations Board’s (“NLRB”) Division of Advice published 16 Advice Memoranda addressing myriad questions posed by various Regional Offices. While a majority of the Memoranda were drafted within the past month, a few were originally issued months or years ago. Advice is the agency’s internal think tank and the vast majority of Memoranda drafted by its attorneys are kept confidential as litigation-related documents.  Advice may instruct a Region to issue complaint in a case, seek settlement or dismiss the charges. Each recently released memo is tied to a specific unfair labor practice (“ULP”) charge…
After a brief delay where the NLRB suspended all representation elections from March 19 through April 6, 2020 (see here and here), NLRB Regional Directors have since largely required elections to be held via mail ballot to curb the spread of COVID-19. Earlier this week, the Office of the General Counsel of the NLRB published a Memo, GC 20-10, containing “suggested” manual election protocols designed to resume the conduct of manual elections, in certain situations, and in a safe and efficient manner. These protocols were developed collaboratively with Regional Directors, the NLRB Division of Operations-Management, the NLRB COVID-19…
After an initial COVID-19 related delay, the sweeping new NLRB representation election rules that reversed the Obama-era “quickie” election process were about to go into effect on May 31, 2020.  However, an eleventh-hour district court order struck down a significant portion of the rule as unlawfully implemented for failing to follow proper administrative procedure, casting doubt on when, if at all, the new rules will apply.  Details of the planned changes are outlined in our reporting on the NLRB’s initial announcement of proposed amendments, as well as updated rules regarding election rules and procedures here and here. On…
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As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases. The Board has struggled for years with the concept that certain commonsense employer business policies can be unlawful. It is difficult to draw bright-line rules from such decisions due to the varied workplaces – even more so now during the COVID-19 pandemic, where workplaces are transforming and new safety guidelines are issued. What may present a legitimate workplace safety concern in one setting, may be deemed pretext in another.…
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As we discussed here, the National Labor Relations Board decided early this month that it would temporarily suspend the remedial notice-posting and emailing requirement at facilities shut down due to the COVID-19 pandemic until after reopening and a return of a “substantial complement” of employees.  See Danbury Ambulance Service, Inc., 369 NLRB 68 (2020). The Danbury Ambulance ruling addressed the posting obligation following the issuance of a Board decision in a contested unfair labor practice case. Normally, employers are required to post the Notice to Employees at the workplace within 14 days after issuance of a decision.  The…
NLRB
As many states throughout the country have begun implementing phased reopening plans, so too has the NLRB begun to return to a semblance of normality. Representation elections resumed in early April, and the NLRB recently provided clarification as to how representation hearings should be conducted. In the last few weeks the agency has counted ballots in representation elections by videoconference. The agency’s prosecutorial arm is now ramping back up. The NLRB Division of Judges announced on May 15 that it will resume holding hearings on unfair labor practice complaints beginning on Monday, June 1. Unfair labor practice trials…
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As most of the country’s workforce continues to adjust to the new realities of social distancing, stay-at-home orders, and limited travel, the practice of law and the forums for adjudicating disputes have shifted to video and telephonic hearings to ensure that the wheels of justice continue to turn notwithstanding COVID-19.  The NLRB has been no different.  While the Board’s existing Rules explicitly permit video conferences upon good cause for unfair labor practice cases, there was no corollary rule or practice for video conferences of representation case hearings involving witnesses – until now. In Morrison Healthcare, 369 NLRB No. 76…
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The Board continues to issue decisions amidst the COVID-19 pandemic, while acknowledging that business operations around the country are far from “business as usual.” The agency is up and running.  Representation elections vote counts are being conducted via video conference as are hearings.  The remedy stage of unfair labor practice proceedings also has caught up with the these crisis-ridden times. The headline from the Board’s decision on May 6, 2020 in Danbury Ambulance Service, Inc., 369 NLRB 68 (2020), is an acknowledgment of this “new normal.”  The NLRB temporarily suspended its standard remedial requirement that an employer must post…
As the NLRB continues to navigate the uncertainty in the work landscape during the ongoing COVID-19 pandemic, it seems to have stayed largely on course, regularly issuing decisions touching on a number of important topics under the Act. One such important topic that the Board has devoted recent attention to has been the issue of unionized employers’ unilateral actions.  We have discussed previously how the Board abandoned the “clear and unmistakable” waiver standard in favor of the “contract coverage standard. The Board recently addressed the issue of whether a unilateral change actually occurred in Huron Valley-Sinai Hospital, 369 NLRB No.…
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In maintaining business as usual as best it can amidst the ongoing COVID-19 crisis, the Board recently decided an issue concerning limitations on employer campaign tactics, and an employer’s limits in restricting discussions with employees related to terms and conditions of employment. In First American Enterprises d/b/a Heritage Lakeside, 369 NLRB No. 54 (2020), the Board was presented with, among other issues, the question of whether an employer could encourage employees to convince coworkers to vote “no” in representation elections. The Board reaffirmed that an employer may solicit employees to convince others to vote “no” in an upcoming union election,…
As we reported here, on April 1, 2020, the NLRB published its final rule making three amendments to its rules and regulations governing union elections (relating to the Board’s blocking charge policy; timing and notice requirements attendant to voluntary recognition; and 9(a) recognition in the construction industry).  The rule was expected to be effective as of May 1, 2020. As a result of the ongoing national emergency caused by COVID-19, the NLRB announced on April 8, 2020 that the new effective date for the final rule is July 31, 2020 — an extension of 60 days.  The effective date…
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On March 19, 2020, the NLRB announced that it was suspending all representation elections through April 3, 2020.  The Board stated that the suspension was necessary to ensure the safety of its own employees, as well as those members of the public involved in the elections. Today, the Board announced that it will not extend the temporary suspension past April 3, 2020, and elections will resume beginning Monday, April 6, 2020.  In a short statement, the Board indicated that over the last two weeks, the General Counsel had developed solutions to the logistics problems caused by the closure of several…